In a recent editorial simply entitled “Prosecutorial abuse,” the New York Times makes its view regarding a 2011 federal appeals ruling by the 11th U.S. Circuit Court of Appeals crystal clear.

And, in fact, it is staunchly supported by 69 retired judges and former federal prosecutors who say that the decision “will allow serious prosecutorial misconduct to be excused and … undermine public confidence in our system of justice.”

The facts underlying the concerns are simply stated and as follows.

Ali Shaygan, a Florida doctor, was indicted on federal drug trafficking charges several years ago, but was acquitted by a jury in federal district court in Miami in 2009 on all 141 criminal counts against him.

The trial judge in the case determined that the prosecution had broadly engaged in misconduct, which included threatening a defense lawyer and secretly taping that attorney. As a remedy for that bad faith and committing other “conscious and deliberate wrongs,” the court awarded Dr. Shaygan $602,000 for fees and damages, as allowed for by the 1977 Hyde Amendment to existing federal law. The law stands as a deterrent to prosecutorial abuse in cases where a court deems that the government has brought federal criminal charges against a person that are “vexatious, frivolous or in bad faith.”

The 11th Circuit overturned Shaygan’s award last year, citing the trial judge’s abuse of discretion for sanctioning “a prosecution that was objectively reasonable.”

Many in the legal community are up in arms over that ruling, saying that it renders the government virtually untouchable and undermines the intent of the Hyde Amendment, which is that prosecutors can be deemed to have abused their office even if their underlying case was legitimate.

The nearly 70 judges and ex-prosecutors who have expressed their dismay with the appellate ruling have filed an amicus brief that attacks its merits. The Department of Justice has until next Monday to file a response.

Source: New York Times, “Prosecutorial abuse,” Aug. 21, 2012

ABA Journal, “Coalition of nearly 70 former judges, prosecutors urge High Court to hear gov’t misconduct dispute,” Molly McDonough, Aug. 13, 2012